Skandha Gunasekara
President Maithripala Sirisena’s presidential pardoning of Bodu Bala Sena Secretary General Ven. Galagoda Aththe Gnanasara Thera, who was convicted on the charges of contempt of court, has been questioned by various groups, with many openly condemning the move as a capricious exercise of executive powers which undermines the independence of the judiciary, while others opined that how the President uses his powers as the executive was his prerogative.
Former Justice Minister Prof. G.L. Peiris, who was the minister during the Chandrika Bandaranaike regime, said that a presidential pardon fell within the President’s prerogative and hence was an unchallenged decision.
“It is an exercise of clemency and not a judicial decision. He has unfettered powers to grant pardon to whomever he wishes,” he said, asserting that the presidential pardon did not amount to an overruling of the court’s verdict.
“The grant of clemency must not be regarded as exercising the right of appeal from the court. This is not an appeal. He is not reversing the judgment of the court,” Prof. Peiris said.
Keeping up with the law?
According to the Constitution, the grant of pardon is as follows:
34. (1) The President may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka –
(a) grant a pardon, either free or subject to lawful conditions;
(b) grant any respite, either indefinite for such period as the President may think fit, of the execution of any sentence passed on such offender;
(c) substitute a less severe form of punishment for any punishment imposed on such offender; or
(d) remit the whole or any part of any punishment imposed or of any penalty or forfeiture otherwise due to the Republic on account of such offence:
Provided that where any offender shall have been condemned to suffer death by the sentence of any court, the President shall cause a report to be made to him by the Judge who tried the case and shall forward such report to the Attorney General with instructions that after the Attorney General has advised thereon, the report shall be sent together with the Attorney General's advice to the Minister in charge of the subject of Justice, who shall forward the report with his recommendation to the President.
(2) The President may in the case of any person who is or has become subject to any disqualification specified in paragraph (d), (e), (f), (g), or (h) of Article 89 or subparagraph (g) of paragraph (1) of Article 91 –
(a) grant a pardon, either free or subject to lawful conditions, or
(b) reduce the period of such disqualification.
(3) When any offence has been committed for which the offender may be tried within the Republic of Sri Lanka, the President may grant a pardon to any accomplice in such offence who shall give such information as shall lead to the conviction of the principal offender or of any one of such principal offenders, if more than one.
Gnanasara Thera was convicted on charges of contempt of court for a 19-year imprisonment with a reduced sentence of six years in prison.
Former Minister of Justice MP Wijeyadasa Rajapakshe too said that the President’s pardoning of Gnanasara Thera could not be questioned. He said that it was up to the President to decide who he pardoned, regardless of the court verdict.
MP Rajapakshe said that there were no legal issues in the pardoning of the thera.
“The President’s power is under the Constitution and he has unlimited powers to grant pardon. There is no legal barrier. Whether it is a contempt of court charge or other is not relevant for a presidential pardon,” he said.
Executive power or irrational motive
However, the Bar Association of Sri Lanka (BASL), issuing a statement, said that President Sirisena should not use his executive powers in an arbitrary manner.
“Laws of contempt exist to protect the judiciary from unwarranted interference with its authority and to protect the judiciary from attacks against its independence and authority…the constitutional power given to His Excellency the President to grant a pardon should not be exercised arbitrarily or based on irrelevant considerations,” BASL opined.
The statement went on to say that it was crucial such powers should take place based on legal principles and reasoning.
“Any departure from these considerations would shake the very foundations of the rule of law and would shock the conscience of those who value an independent judiciary,” the statement said.
BASL went on to say that vital stakeholders, such as the court which imposed the sentence and the Attorney General should be consulted, and that failing to do so would undermine the independence of the judiciary.
“The BASL is of the strong view that the consultative process referred to would ensure that such a power should be reasonably exercised without leaving any room for loss of public confidence and for undermining the independence of the judiciary,” the statement read.
Nevertheless, Law and Society Trust Senior Researcher Vidura Munasinghe asserted that the President’s move was a clear violation of the independence of the judiciary.
“The Supreme Court of Sri Lanka is the highest authority in the country with regard to law and order, and the President was overruling a verdict of the Supreme Court. This is a clear infringement against the independence of the judiciary,” he said, noting that this was not the first time in the country’s history that such an incident had taken place.
Munasinghe said that if there is to be a balance of power between the judiciary, the President should not undermine the power and independence of the courts, especially the Supreme Court, adding: “This shows that this President does not have any respect for court rulings of Sri Lanka.”
Meanwhile, United National Front (UNF) Parliamentarian Dr. Jayampathy Wickramaratne, PC was also of the view that the President had acted in an arbitrary manner.
He said the fact that there was no remission of the sentence and that it was an all-out pardon of the convict which was an arbitrary exercise of the executive powers by the President.
“Having a sentence of 19 years reduced to a period of six years and even before a year (of the reduced sentence) is concluded, he is given a pardon. When the judiciary is the victim, it is not a remission of the sentence. If it was a remission, however, it means the offence still stands but the sentence was shortened. But here, it is a complete pardon, which I think is arbitrary,” he explained.
He said that it was unfortunate that the President had not consulted the judiciary or the Chief Justice. With regard to avoiding such a situation in the future, Wickramaratne said that there should be a mechanism to ensure the relevant officials are consulted.
“These powers are given to the president on the basis that they would not be used arbitrarily. I said in Parliament recently that even in the case of appointing Court of Appeal judges, there should be a proper mechanism rather than the president nominating names. A similar mechanism should be in place where consultation could be carried out. In the absence of legal mechanisms, the President should have a mechanism where he can consult the relevant authorities before making such a decision,” Wickramaratne stated.
President Maithripala Sirisena’s presidential pardoning of Bodu Bala Sena Secretary General Ven. Galagoda Aththe Gnanasara Thera, who was convicted on the charges of contempt of court, has been questioned by various groups, with many openly condemning the move as a capricious exercise of executive powers which undermines the independence of the judiciary, while others opined that how the President uses his powers as the executive was his prerogative.
Former Justice Minister Prof. G.L. Peiris, who was the minister during the Chandrika Bandaranaike regime, said that a presidential pardon fell within the President’s prerogative and hence was an unchallenged decision.
“It is an exercise of clemency and not a judicial decision. He has unfettered powers to grant pardon to whomever he wishes,” he said, asserting that the presidential pardon did not amount to an overruling of the court’s verdict.
“The grant of clemency must not be regarded as exercising the right of appeal from the court. This is not an appeal. He is not reversing the judgment of the court,” Prof. Peiris said.
Keeping up with the law?
According to the Constitution, the grant of pardon is as follows:
34. (1) The President may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka –
(a) grant a pardon, either free or subject to lawful conditions;
(b) grant any respite, either indefinite for such period as the President may think fit, of the execution of any sentence passed on such offender;
(c) substitute a less severe form of punishment for any punishment imposed on such offender; or
(d) remit the whole or any part of any punishment imposed or of any penalty or forfeiture otherwise due to the Republic on account of such offence:
Provided that where any offender shall have been condemned to suffer death by the sentence of any court, the President shall cause a report to be made to him by the Judge who tried the case and shall forward such report to the Attorney General with instructions that after the Attorney General has advised thereon, the report shall be sent together with the Attorney General's advice to the Minister in charge of the subject of Justice, who shall forward the report with his recommendation to the President.
(2) The President may in the case of any person who is or has become subject to any disqualification specified in paragraph (d), (e), (f), (g), or (h) of Article 89 or subparagraph (g) of paragraph (1) of Article 91 –
(a) grant a pardon, either free or subject to lawful conditions, or
(b) reduce the period of such disqualification.
(3) When any offence has been committed for which the offender may be tried within the Republic of Sri Lanka, the President may grant a pardon to any accomplice in such offence who shall give such information as shall lead to the conviction of the principal offender or of any one of such principal offenders, if more than one.
Gnanasara Thera was convicted on charges of contempt of court for a 19-year imprisonment with a reduced sentence of six years in prison.
Former Minister of Justice MP Wijeyadasa Rajapakshe too said that the President’s pardoning of Gnanasara Thera could not be questioned. He said that it was up to the President to decide who he pardoned, regardless of the court verdict.
MP Rajapakshe said that there were no legal issues in the pardoning of the thera.
“The President’s power is under the Constitution and he has unlimited powers to grant pardon. There is no legal barrier. Whether it is a contempt of court charge or other is not relevant for a presidential pardon,” he said.
Executive power or irrational motive
However, the Bar Association of Sri Lanka (BASL), issuing a statement, said that President Sirisena should not use his executive powers in an arbitrary manner.
“Laws of contempt exist to protect the judiciary from unwarranted interference with its authority and to protect the judiciary from attacks against its independence and authority…the constitutional power given to His Excellency the President to grant a pardon should not be exercised arbitrarily or based on irrelevant considerations,” BASL opined.
The statement went on to say that it was crucial such powers should take place based on legal principles and reasoning.
“Any departure from these considerations would shake the very foundations of the rule of law and would shock the conscience of those who value an independent judiciary,” the statement said.
BASL went on to say that vital stakeholders, such as the court which imposed the sentence and the Attorney General should be consulted, and that failing to do so would undermine the independence of the judiciary.
“The BASL is of the strong view that the consultative process referred to would ensure that such a power should be reasonably exercised without leaving any room for loss of public confidence and for undermining the independence of the judiciary,” the statement read.
Nevertheless, Law and Society Trust Senior Researcher Vidura Munasinghe asserted that the President’s move was a clear violation of the independence of the judiciary.
“The Supreme Court of Sri Lanka is the highest authority in the country with regard to law and order, and the President was overruling a verdict of the Supreme Court. This is a clear infringement against the independence of the judiciary,” he said, noting that this was not the first time in the country’s history that such an incident had taken place.
Munasinghe said that if there is to be a balance of power between the judiciary, the President should not undermine the power and independence of the courts, especially the Supreme Court, adding: “This shows that this President does not have any respect for court rulings of Sri Lanka.”
Meanwhile, United National Front (UNF) Parliamentarian Dr. Jayampathy Wickramaratne, PC was also of the view that the President had acted in an arbitrary manner.
He said the fact that there was no remission of the sentence and that it was an all-out pardon of the convict which was an arbitrary exercise of the executive powers by the President.
“Having a sentence of 19 years reduced to a period of six years and even before a year (of the reduced sentence) is concluded, he is given a pardon. When the judiciary is the victim, it is not a remission of the sentence. If it was a remission, however, it means the offence still stands but the sentence was shortened. But here, it is a complete pardon, which I think is arbitrary,” he explained.
He said that it was unfortunate that the President had not consulted the judiciary or the Chief Justice. With regard to avoiding such a situation in the future, Wickramaratne said that there should be a mechanism to ensure the relevant officials are consulted.
“These powers are given to the president on the basis that they would not be used arbitrarily. I said in Parliament recently that even in the case of appointing Court of Appeal judges, there should be a proper mechanism rather than the president nominating names. A similar mechanism should be in place where consultation could be carried out. In the absence of legal mechanisms, the President should have a mechanism where he can consult the relevant authorities before making such a decision,” Wickramaratne stated.